Scholars’ Brief in Shelby County v. Holder Urges Fidelity to Text and History of Thirteenth, Fourteenth, and Fifteenth Amendments

David Gans

While perhaps not as “unique” as the Westboro Baptist briefin Windsor
described by Jason below, the brief Constitutional Accountability Center filed
on behalf of scholars including Jack Balkin in Shelby County v. Holder, does present the Court with a uniquely
comprehensive account of the Enforcement Clauses of the Reconstruction
Amendments that I thought would be of interest to the readers of this blog.The brief, which is available here and is
signed by Jack as well as Professors Guy-Uriel Charles, Luis Fuentes-Rohwer,
and Adam Winkler, analyzes the text and history of the Enforcement Clause of
the Thirteenth, Fourteenth, and Fifteenth Amendments to show that the original
meaning of the express grant of power to “enforce” by “appropriate legislation”
gave Congress broad discretion to enact legislation to protect the
Reconstruction Amendments’ new constitutional guarantees of freedom,
fundamental rights and equality, and voting rights.This is the first time in modern Supreme
Court history – and perhaps ever – that the Court has been presented with the
text and history of all three of the Reconstruction Amendments.The payoff is a clear and comprehensive
showing how the American people fundamentally altered the Constitution and the
balance of federal-state power to give Congress the power to ensure that
fundamental rights, like the right to vote, were actually enjoyed, and to
prevent and deter state-sponsored discrimination.

As the brief demonstrates, the Thirteen, Fourteenth, and
Fifteenth Amendments fit together like an interlocking puzzle with pieces that
both stand alone and build off each other. The Reconstruction Amendments
and their nearly identically worded Enforcement Clauses reflect the lessons of
the antebellum period and the Civil War and significantly change the balance of
power between the federal government and the states. Against the back
drop of Dred Scott v. Sandford, the
Framers chose language – “appropriate legislation” – intended to give Congress
broad discretion to select the means to “enforce” the Constitution’s new
guarantees of personal, individual rights.The Framers of the Reconstruction Amendments chose this language – words
taken directly from Chief Justice Marshall’s foundational opinion in McCulloch v. Maryland sustaining the
broad federal powers of Congress under Article I – because they were reluctant
to leave the judiciary with sole responsibility for protecting against racial
discrimination in voting and other constitutional violations.As the brief reflects, the scholarly work of
the nation’s leading constitutional scholars on both the left and right –
including Jack Balkin, Steven Calabresi, and Michael McConnell – demonstrate
that the text, history, and original meaning of the Reconstruction Amendment
give Congress broad power to enact prophylactic regulation to protect the
constitutional rights guaranteed by the Reconstruction Amendments.

The history of the three Amendments fit tightly
together.Indeed, each subsequent
Amendment built off the experience of Congress in trying to enforce the
Constitution in the face of continuing discrimination by recalcitrant southern
states. The Thirteenth Amendment, for the first time in the
Constitution’s history, gave Congress the express power to enforce the
Constitution’s promise of freedom.Debates over Congress’ first attempt to enact landmark civil rights
legislation to enforce the Thirteenth Amendment, the Civil Rights Act of 1866,
led to the passage of the Fourteenth Amendment, which armed Congress with new
powers to protect fundamental rights and equality under the law for all
persons.Culminating this historical
progression, the Fifteenth Amendment’s plain language and history demonstrates
that Congress, not the courts and certainly not the states, was being given
sweeping powers to stamp out every conceivable attempt by the states to deny
the franchise on account of race.Given this history, the Fifteenth Amendment’s
focused mandate, and the overwhelming evidence of the intended role of
Congress, the Supreme Court’s deference to Congress should be at its apex
in reviewing legislation designed to prevent and deter racial discrimination in
voting prohibited by the Fifteenth Amendment.

The central question in Shelby
County is whether the Court’s conservative Justices will follow this text
and history or try to subvert it.Shelby County argues that the preclearance requirement of the Voting
Rights Act and its associated coverage are outdated and necessary, and hence unconstitutional,
but Congress, using the express powers specifically granted in the
Constitution, disagreed.By an
overwhelming margin – 98-0 in the Senate and 390-33 in the House – bipartisan
majorities agreed that the preclearance provision of the historic Voting Rights
Act continued to serve the critical purpose of preventing and deterring racial
discrimination in voting that persist in the covered jurisdictions.As the comprehensive opinions below demonstrate,
Congress had ample basis for maintaining Section 5 as a bulwark against current
and ongoing state-sponsored racial discrimination in voting concentrated in the
covered jurisdictions.Pursuant to the
original understanding of the Fifteenth Amendment’s Enforcement Clause – that
Congress would have broad power to determine what is appropriate to protect the
right to vote free from racial discrimination – the Court should defer to
Congress’s near-unanimous judgment.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Shelby County. This post is being cross-posted at Text and History.

The biggest concern here is that the USSC will hold that the specific use of the powers used here is not properly congruent and proportional to current needs. The general idea that Congress can address subject matter seems to me to be a major aspect of the brief, but that isn't really the biggest concern, is it?

It is that the baseline used is outdated and that more up to date and general (thus some concern that equality of the states is being violated) methods, including to address non-covered jurisdictions, should be used.

I'm all for broad discretion to Congress but this is the biggest concern. Is the brief and this discussion properly focused on it?

Depends on how "broad" you want "broad" to mean. Pursuant to rulings like Boerne v. Flores & NAMUNDO v. Holder, the USSC has not just left the matters to Congress.

The USSC very well might be wrong, but don't think they are going to change their minds. So, my concern would be not some general history lesson, but more emphasis on why this specific law is good enough.

The PPACA also should have been upheld under the CC pursuant a rational basis test. We saw how appeals to McCulloch and the like got us there. But, I guess what should be the case can be part of the amici mix too.

Wondering if this brief might allow the reconciliation of Section 5 with City of Boerne, I reread for the first time in a while City v. Boerne. Justice Kennedy makes two points in Section III-A of the opinion: that enforcing rights protected by the Constitution is different from defining those rights; and that "congruence and proportionality" between means and ends is a hallmark of enforcement.

It is interesting that the debate among the justices was focused on the definition of the right to freedom of religion, in particular, the validity of Employment Division v. Smith. If Smith had been wrongly decided, then there would be no conflict between RFRA and the First Amendment. "Congruence and proportionality" slipped in through the side door. However, I think it is clear that Justice Kennedy has always wanted it to be a limiting principle for federal power, and that the contemporary Court so sees it.

In City of Boerne, Justice Kennedy examines the "legislative record" for RFRA and finds it wanting in comparison with the Voting Rights Act. It is clear from NAMUNDO that the Court no longer respects that legislative record. Unless Justice Scalia decides that the legislative record is just legislative history writ large (he did not join Section III-A-1 of Kennedy's opinion, dealing with the legislative history of the Fourteenth Amendment, but did join Section III-B, analyzing the legislative record), there is only weak support for the preclearance remedy.

However, if the scope of the Fifteenth Amendment right to vote is sufficiently ample, it can support even such strong remedies as pre-clearance. That is, is the right to vote protected from violation by a shell of derivative rights, such as a right against non-retrogression in redistricting, a right against arbitrary changes in registration and voting procedures, a right against suppression of turnout by location and quantity of polling places, etc.

This issue is liable to be highlighted with the example of photo ID requirements. The Court has held these do not violate the Fourteenth Amendment in Crawford v. Marion County. (Interestingly, Scalia's opinion, joined by Thomas and Alito, sounds a lot like Employment Division v. Smith.) But the Justice Department refused to preclear Texas' photo ID requirement (which was later found to be regressive of voting rights by a three-judge court, which pretermitted the purposeful discrimination question that Scalia had found determinative). Particularly to state sovereignty adherents like Scalia and Kennedy, this differing treatment of states is abhorrent.

It seems that Justice Kennedy, like the amicus brief, interprets the Civil War Amendments in pari materia. Unfortunately, he interprets them as bearing much less power than the brief. The brief is a nice try, but I don't think it will save Section 5.

The Crawford plurality held that the specific law in place did not violate the Constitution in the midst of a facial challenge. This doesn't mean ALL id laws, no matter their harshness, are acceptable.

Also, Crawford noted the record didn't provide enough proof of harm. The Administration has offered such proof (we can carp on the merits) as have other challengers.

This is a powerfully, tightly argued brief, making its case by means of text, history and decisions of the Court, including decisions on the Voting Rights Act. The brief addresses well Boerne's refinement of McCulloch. It may be difficult for textualists/originalists on the Court to ignore the arguments in this brief. [Note: Is there available a textualist/originalism brief or article challenging this brief on text/originalism grounds?]

Justice Thomas, as I speculated in any earlier comment, just might be a swing vote. Thomas' life has experienced the efforts of states with Jim Crow laws impacting the rights of African-Americans under the 15th Amendment. While Thomas has yet to demonstrate on the Court what Justice Thurgood Marshall brought to the Court with his experiences as an African American and as a lawyer helping pave the way for Thomas to be appointed to the Court via educational benefits springing from Brown v. Bd. of Educ. and the Civil Rights Acts of the 1960s), at some point Thomas has to be concerned with how history will treat his time and role on the Court. This case may be a future Dred Scott if the Court limits Section 2 of the 15th Amendment and decimates the Voting Rights Act. From the standpoint of originalism, much more information is available on how the Reconstruction Amendments came into being.

There is repetition in this brief that makes it even more effective. Its arguments are supported in great detail, sort of like belt, suspenders and jockstrap.

For those who cannot, will not take the time to read the entire brief, take a peek at the paragraph beginning at the bottom of page 27 and continuing on page 28 for a taste.

Doug Kendall's recent post at this Blog "The Deafening Silence of Conservative Stars on the Constitutionality of the Voting Rights Act" does not provide for comments, although comments can be made at his post at Text and History.

In my earlier comment I included this question:

"[Note: Is there available a textualist/originalism brief or article challenging this brief on text/originalism grounds?]"

Doug's post seems to answer "No." But "Why"?

Perhaps it is Brown v. Bd. of Educ. that no one seems prepared to directly challenge. Brown was unanimous, with one opinion. Over time, alas too much time, Brown has been accepted. Some originalists have opined that originalism supports Brown. But it took a long time, too long, for the acceptance of Brown. Brown has become foundational in ConLaw. Brown, as noted, is no longer subject to direct challenge.

The textualism/originalism case for the Voting Rights Act is much, much stronger than it was for Brown. Perhaps this accounts for the deafening silence Doug refers to.

It is of course possible that SCOTUS may determine that cert should not have been granted and get rid of the case. If not, what might be the impact of a majority upholding Shelby County? What might be the impact on textualism/originalism? If SCOTUS sustains the lower court decision, thus upholding the constitutionality of the Voting Rights Act, what if it is not unanimous with one or more dissents, or even if unanimous with one or more concurring opinions, what might be the impact? Might Shelby County v. Holder be considered a latter day Dred Scott? Might CJ Roberts display the skills of CJ Warren in Brown?

When Brown came down in 1954, I was finishing up law school at the age of 23. I recall well what happened as Brown was challenged on the ground and in Congress, even after the Civil Rights Acts of the 1960s. I recall well Richard Nixon's Southern Strategy in the 1968 presidential campaign, remnants of which continue to this day. I recall well the treatment of Pres. Obama by conservatives from day one and continuing even with his reelection. This is a time for CJ Roberts to lead. Enough!

Sam Tanenhaus' The New Republic essay (Feb. 10, 2013) "Original Sin - Why the GOP is and will continue to be the party of white people" includes some of what I recall from the days post-Brown v. Bd. of Educ. that I referenced in my earlier comment on Doug Kendall's recent related post at this Blog. I learned of this essay from Paul Krugman's NYTimes blog entry yesterday that provides a link and a comment about his view of the GOP in his "Conscience of a Liberal.".

Finley Peter Dunne's Mr. Dooley many generations ago sometimes commented on the Supreme Court following the election returns. Perhaps its conservative members also read "tea leaves." Tanenhaus makes no reference to the Shelby County appeal but read between the lines.

Why is the number of senators and representatives who supported the extension of the VRA of any significance in the debate? If Congress passes a law by the barest minimum in each chamber it is just as valid a law, yet this blog and several of the amici seem to feel that the size of the majorities should somehow make a difference in the legal argument.

Loyal Opposition apparently has more confidence in the unelected 5-4 judiciary than the elected, representative, branches. Why, especially when the elected branches do so overwhelmingly over time, including recently? Perhaps Loyal Opposition is suffering from Lindsey Graham-itis.

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